Untitled Texas Attorney General Opinion ( 1970 )

CW*Wr”RD c. LwAR-rIN
AUSTIN. %-EZXAS 7
*-l-roRNEY
GRNnGRAI.
Aiiin#d by Crap@ 0,
May15 , 1970
Bd. of bimD.n'm swiof
and Retianmt Fund
456 su Pd page 49,438
Mrs. Marie Winters OpiniOn NO. M-631
Firemen's Pension Commissioner
1010 Sam Houston Building Re: Construction of Section 7F,
Austin, Texas 78701 Article 6243e, Firemen's
Rellef~and,Retirement Fund
Act,~S.B:473, Acts;Glst
Leg., R.S., 1969, ch. 768,
Dear Mrs. Winters: p. 2281.
In your letter requesting an opinion from this office,
you submit the following facts:
"Most of the thirty-seven (37) fully paid
fire departments that participate in the State
Firemen's Pension System are having actuarial
studies made and increasing benefitsas provided
unde,rSection 7F. Three of these departments,
Amarillo, Lubbock and Abilene have raised bene-
fits which, in my opinion, are not permissible
under Section 7F.
"Amarillo and Lubbock have voted to pay a
lump sum of $2,500.00 to a retiring fireman plus
his regular monthly pension. No lump sum pay-
ment Is provided in the Act; however, a lump
sum may be permissible to firemen, however, the
two towns mentioned have also voted to pay a
lump sum of $2,5OO.OO to the widow of a fireman
who dies after the new benefits are voted In."
With regard to these facts you ask the following ques-
tions:
“May I have your official ruling on whether
or not the lump sum to firemen is legal and $1~0
are changes to widows benefits legal. 0 D .
Section 7F was Initial1 amended by S.B. 397, Acts
61st Leg., R.s., 1969, chapter 17% , Section 3, page 508, and
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.
Mrs. Marie Winters, page 2 (M-631)
provides as follows:
"Sec. 3. Section 7F, Chapter 125, Acts
of the 45th Legislature, Regular Sessioh; 1937,
(Article 6243e, Vernon's Texas Civil Statutes)
as added by'sectlon 4, Chapter 167, Acts of the
60th Legislature, Regular Session, 1967, is
amended to read as follows:
"'Sec. 7F. In cities of less than one hundred
eighty-five thousand (185,000), according to the
last preceding Federal Census, the monthly,pension
allowance as provided for underSections 6, 7 and
7A of this Act, and In cities of more than one
hundred eighty-five thousand (185,000) the monthly
pension allowance as provided for under Sections
6B, 7B, and 76 of this Act, may begIncreased pro-
vided that:
"'(1) the Increase Is first approved by an
actuary qualified by training and experience in
the field of retirement programming and who is
selected by a four-fifths vote of the Board of
Trustees of the Firemen's Relief and Retirement
Fund;
"'(2) a majority of the participating mem-
bers of the pension fund vote for the Increased
,monthlypension allowance by a secret ballot;
"'(3) the increase applies only to active
full time firemen In the department at the time
of the Increase and those who enter the depart-
ment thereafter.'"
Section 7F was subsequently amended during the same
session of the Legislature by S.B. 473, Acts 61st Leg., R.S.,
1969, chapter 768, Section 1, p* 2281, and provides as follows:
"Sec. 7FF. This section applies to all
cities and towns which are now within or which
may hereafter come wfthin the provisions of this
Act. The Board of Trustees, as prescribed by law,
of any such city or town may modify or change In
any manner whatsoever any of the benefits provided
hereunder and may modify or change in any manner
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Mrs. Marie Winters, page 3(M-631)
whatsoever any of the eligibility requirements
for such benefits provided that:
"(1) the change or modification 1s first
approved by a qualified actuary selected by a
four-fifths vote of the Board of Trustees of the
Firemen's Relief and Retirement Fund; such qualified
actuary shall (a) if an Individual, be a Fellow
of the Society of Actuaries or a Fellow of the
Conference of Actuaries in Public Practice or a
Member of the American Academy of Actuaries;
“(2) a majority of the participating mem-
bers of the pensionfund vote for the change or
modification by a secret ballot;
"(3) the change or modification applies
only to active full time firemen in the depart-
ment at the time of the change or modification
and those who enter the department thereafter;
and
-
"(4) the change or modification does not
deprive a member, without his written consent,
of a right to receive benefits hereunder which
have already become fully vested and matured in
such membereH (Emphasis added.)
S.B. 473, in authorizing cities or towns to modify
or change in any manner whatsoever all of the pension benefits
provided for in Article 6243e, and in addition authorizing the
cities to modify or change in any manner whatsoever any of the
eligibility requirements for such benefits, broadens considerably
the scope and application of Section 7F as amended by S.B. 397.
The Legislature in granting the cities such broad authority to
operate their individual Firemen's Relief and Pension Fund is
presumed to have acted with full knowledge of all existing statutes,
especially those dealing with the subject matter of the new statute;
that 1s S.B. 473. Garner v. Lumberton Independent School District,
430 S.W.2d 418 (Tex,Civ.App. 19b8, no writ).
Under the broad authority of S,B. 473> supra, the Board
of Trustees of the Firemen's Relief and Retirement Fund Trustees
of a town or city would be authorized9 under the prescribed pro-
cedure, to modify or change any existing pension benefit provided
for in Article 6243e, Vernon"s Civil Statutes, the Firemen's
Relief and Retirement Fund Act. This authority would include the
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Mrs. Marie Winters, page 4(m-631)
granting of a lump sum payment In addition to a regular monthly
pension to those firemen or their survivors who were active full-
time firemen in the department on the date the additional lump
sum payment is voted on and adopted by the membership and those
who entered the department after such date as active full-time
firemen. This would preclude any pension modification or change
In the form of an additional lump sum payment in pension benefits
to retired firemen or their survivors.
Section 6a, Article 6243e, contains a provision similar
to Section 7F, Article 6243e, which requires an election for the
adoption of additional pension benefits. In construing this Sec-
tion, Attorney General's Opinion Wo. WW-1168 (1961) holds:
I!
. . . those persons who have 'retired' and
who have received retirement benefits prior to
the election discussed above have no right to
participate in or otherwise receive benefits
under Section 6a of Article 6243e, Vernon's Civil
Statutes.U
It is our opinion that this reasoning is applicable to the con-
struction of the provisions of Section 7F.
Therefore, on the basis of the foregoing discussion,
It is our opinion that under the provisions of Section 7F,
Article 6243e, Firemen's Relief and Retirement Fund Act (S.B.
473, Acts 61st Leg., R.S., 1969, ch. 768, p. 2281), that a lump
sum payment in addition to a regular monthly pension is authorized
to be paid to a retired fireman or his survivor if such additional
payment was adopted at the time such fireman was an active full-
time fireman In the department or prior to the time such fireman
entered the department as an active full-time fireman.
SUMMARY
Under the provisions of Section 7F, Article
6243e, Firemen's Relief and Retirement Fund~.Act
(S.B. 4 3, Acts 61st Leg., R.S., 1969, ch. 768,
p* 22811 a lump sum payment, In addition to
a regular monthly pension, is authorized to be
paid to a retired fireman or his survivor, if
such additional payment was adopted at the time
he was an active full time fireman in the depart-
ment or prior to the time such fireman entered
the department as an active full-time fireman.
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Mrs. Marie Winters, page 5 (M-631)
Prepared by Ivan R. Williams, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Acting Co-Chairman
Sam Jones
Malcolm Quick
Jack Sparks
Houghton Brownlee
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WRITE
First Assistant
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